Date: 02-27-2018

Case Style:

Case Number: 16-1580

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Western District of Wisconsin (Dane County)

Plaintiff's Attorney: Laura A. Przybylinski Finn

Defendant's Attorney: Joseph Aragorn Bugni, Kelly A. Welsh and Peter Rowe Moyers - FPD

Description: These consolidated appeals represent
another application of the “categorical approach” for
applying recidivist statutes. The specific question in these appeals
is whether convictions under a portion of the Wisconsin
* Circuit Judge Posner retired on September 2, 2017, and did not participate
in the decision of this case, which is being resolved by a quorum
of the panel under 28 U.S.C. § 46(d).
2 Nos. 16-1580 & 16-1872
burglary statute, Wis. Stat. § 943.10(1m)(a), qualify as convictions
for violent felonies under the federal Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The outcome of
these appeals depends on whether the Wisconsin statute is
“divisible” or not, which depends in turn on the sometimes
slippery distinction between a crime’s “elements” and
“means.” In short, if the burglary statute is divisible, then we
must affirm; if it is not divisible, we must reverse. We find that
the statute is divisible, so we affirm.
I. Factual and Procedural Background
Both defendants in these consolidated appeals, Dennis
Franklin and Shane Sahm, pleaded guilty to possessing a firearm
as a felon. See 18 U.S.C. § 922(g)(1). The district court
found that both men had three prior burglary convictions that
were violent felonies under the ACCA. The court therefore
sentenced them both to the mandatory minimum of fifteen
years in prison. See § 924(e)(1). On appeal, Franklin and Sahm
contend that their prior convictions for burglary in Wisconsin
are not violent felonies under the ACCA so their sentences
could be no more than ten years in prison.
Franklin was convicted of being a felon in possession of a
firearm. On Thanksgiving Day in 2014, Madison police responded
to a report of a residential burglary in progress and
arrested Franklin at the scene. When searching the area, police
found a gun that Franklin had hidden nearby. Franklin
pleaded guilty to possessing a gun unlawfully. See 18 U.S.C.
§ 922(g)(1).
A probation officer recommended in the presentence report
that Franklin be sentenced as an armed career criminal.
See 18 U.S.C. § 924(e). The report explained that he had at
Nos. 16-1580 & 16-1872 3
least three convictions for violent felonies under the statute:
armed burglary in 1994, two burglaries and an attempted burglary
in 2001, and burglary in 2003, all in Wisconsin. Franklin
argued that he should not be sentenced as an armed career
criminal because Wisconsin’s burglary statute is broader than
the generic crime of burglary under the ACCA. The district
court ruled that Franklin was an armed career criminal and
imposed the mandatory minimum 180-month sentence.
Sahm’s story is similar. He stole three guns and sold them.
Sahm too was a convicted felon, and he was also charged with
and pleaded guilty to possessing a firearm as a felon. See 18
U.S.C. § 922(g)(1). Sahm had three relevant prior convictions:
burglary in 1997, and two burglaries in 2008, all in Wisconsin
for burglarizing “a building or dwelling.” See Wis. Stat.
§ 943.10(1m)(a). Sahm argued that his burglary convictions
were not for “generic burglary” and thus should not count as
violent felonies under the ACCA. The district court disagreed
and imposed the mandatory minimum 180-month sentence.
II. Analysis
The framework for our analysis is familiar because of the
volume of similar cases. Under the ACCA, a conviction for
“burglary” counts as a violent felony. 18 U.S.C.
§ 924(e)(2)(B)(ii). In Taylor v. United States, 495 U.S. 575, 598
(1990), the Supreme Court held that the federal statute requires
a conviction for “generic burglary,” which is defined,
regardless of labels under state law, as “an unlawful or unprivileged
entry into, or remaining in, a building or other
structure, with intent to commit a crime.” In evaluating a conviction
under the ACCA definition, Taylor further explained,
a sentencing court must use the “categorical approach,”
which focuses on the elements of the statutory offense, not the
4 Nos. 16-1580 & 16-1872
particular facts of the defendant’s crime. Id. at 601–02. Thus, if
a state burglary statute is broader than “generic burglary” by
applying, for example, to unlawful entries into vehicles as
well as buildings or structures, then a conviction does not
count under the ACCA definition even if the defendant in fact
committed the prior offense by unlawfully entering a building.
E.g., Mathis v. United States, 136 S. Ct. 2243, 2250 (2016);
see also Descamps v. United States, 570 U.S. 254, 261 (2013) (conviction
under California burglary statute that did not require
unlawful entry did not count as violent felony under ACCA).
So we look to the Wisconsin burglary statute. It provides
as follows:
Whoever intentionally enters any of the following
places without the consent of the person in lawful possession
and with intent to steal or commit a felony in
such place is guilty of a Class F felony:
(a) Any building or dwelling; or
(b) An enclosed railroad car; or
(c) An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or trailer;
or
(e) A motor home or other motorized type of home or
a trailer home, whether or not any person is living
in any such home; or
(f) A room within any of the above. 1
1 In 2004 the Wisconsin burglary statute was renumbered, changing
from Wis. Stat. § 943.10(1)(a)–(f) to § 943.10(1m)(a)–(f), but the language
remained the same. We use the current numbering to refer to both versions.
Nos. 16-1580 & 16-1872 5
Because the Wisconsin statute extends to several types of
vehicles, it is broader than “generic burglary” under Taylor
and the ACCA. That does not end the inquiry, though. If the
statute is “divisible” among portions that are within the scope
of generic burglary and those that are outside it, then the sentencing
court may apply the “modified categorical approach.”
That allows the court to look at court records to determine
whether the defendant was convicted under a portion of the
statute within the scope of generic burglary. Shepard v. United
States, 544 U.S. 13 (2005). If he was, then the conviction may
count as a violent felony under the ACCA.
That’s how the notion of divisibility takes center stage in
these appeals. So how do we decide divisibility? The key is to
figure out whether the different locations in the Wisconsin
statute signal different elements and thus different crimes
(equals divisible) or are merely different means for committing
the same crime (equals not divisible).
The most extensive guidance from the Supreme Court on
this question appears in Mathis v. United States, 136 S. Ct. 2243,
2248 (2016). “Elements” are a crime’s “constituent parts,”
which a jury must find beyond a reasonable doubt or a defendant
must admit when pleading guilty. “Means” are extraneous
to the crime’s constituent parts; they are different factual
scenarios that do not create legal consequences. Id. A
crime counts as “burglary” and thus as a violent felony under
the ACCA if its elements—not the means of satisfying the elements—
are the same as or narrower than the generic definition
of burglary. Id. We review de novo whether a prior conviction
qualifies as a violent felony. United States v. Duncan,
833 F.3d 751, 753 (7th Cir. 2016).
6 Nos. 16-1580 & 16-1872
Mathis explains that some signals for determining whether
a statute lists separate offense elements or alternative means
of fulfilling an element are obvious. First, any ruling from the
state supreme court on the means v. elements question is dispositive,
as it was in Mathis itself. 136 S. Ct. at 2256. In this
case, though, the Supreme Court of Wisconsin has not addressed
the issue.
Second, the statute on its face may resolve the issue. For
example, if the alternatives carry different punishments, they
are elements of different crimes, id., but that is not the case
here. On the other hand, if the statute “offer[s] illustrative examples,”
then it lists means of committing the crime. Id. (internal
quotation marks omitted). The Wisconsin burglary statute
does not use such language. The statute could also “itself
identify which things must be charged (and so are elements)
and which need not be (and so are means).” Id.
Third, if the question is still unresolved, a court may
“peek” at “the record of a prior conviction itself”—such as indictments
and jury instructions. Id. at 2256–57. If the documents
charge the alternatives collectively, they may be means,
but if they charge one alternative to the exclusion of others,
they are likely elements. Id.
We recently applied Mathis to just one subsection of Wisconsin’s
burglary statute in United States v. Edwards, 836 F.3d
831, 838 (7th Cir. 2016), where we held that a prior burglary
conviction for violating § 943.10(1m)(a), the first subsection,
did not count as a “crime of violence” under the Sentencing
Guidelines. See U.S.S.G. § 4B1.2(a). At the time, the Guidelines
included burglary only of a “dwelling,” not burglary of
other buildings, as a crime of violence. (In this way, the old
Nos. 16-1580 & 16-1872 7
guideline definition differed from the generic burglary definition
used under the ACCA.) The first subsection of the Wisconsin
statute, which covers burglary of “any building or
dwelling,” is too broad to qualify as a crime of violence under
the older guideline definition unless the subsection itself is divisible.
We held in Edwards that subsection (a) is not divisible, explaining
that the structure of the entire burglary statute and
the phrasing of the subsections indicate that any particular
subsection is not divisible. See 836 F.3d at 837–38. That holding
in Edwards does not answer the question before us. First,
subsection (a) covering burglary of “any building or dwelling”
fits within the definition of generic burglary under the
ACCA, which refers to “a building or other structure.” Second,
the issue here is whether the Wisconsin burglary statute
as a whole is divisible among its subsections, not whether a
particular subsection itself is divisible.
In the absence of a definitive holding from the Wisconsin
Supreme Court, we start, as we did in Edwards, with the statute’s
text and structure. In the statute, all burglary crimes are
classified as “Class F” felonies, meaning that the subsections
carry the same punishment and thus are not necessarily distinct
elements. The statute opens by defining those crimes as
entering without consent “any of the following places” and
with intent either to steal or commit a felony, and then has six
subsections enumerating locations. These subsections cover
dwellings, railroad cars, ships, mobile homes, and cargo portions
of trucks. The last subsection, § 943.10(1m)(f), is a little
different, covering “a room within any of the above” locations,
so it overlaps each of the other subsections.
8 Nos. 16-1580 & 16-1872
We put aside subsection (f) for these appeals since they
present no issue under it. We conclude that the remaining
subsections in § 943.10(1m) are distinct and divisible. Each
subsection can be delineated from the others (i.e., buildings,
railroad cars, ships, motor homes, cargo portions of trucks).
The alternatives within each subsection overlap a great deal
(i.e., building v. dwelling, ship v. vessel, truck v. trailer, motor
home v. trailer home). As a result, we are not concerned as we
were in Edwards that a prosecutor could charge two burglary
counts under different subsections for one act. One might conceive
of some overlap between subsections at the margins—for
example, a houseboat could be both a dwelling and a ship.
But we think that the defendants overstate the concern about
double-charging. No subsection duplicates another in principle.
And the greater variety among the subsections, as compared
to within each of them, satisfies us that the subsections
signal distinct locations that are intended to be enumerated
alternative elements rather than mere “illustrative examples.”
As compared to the Iowa burglary statute in Mathis, the
Wisconsin burglary statute’s structure reinforces our conclusion.
The Iowa statute applies to burglarizing an “occupied
structure” and defines that term in a separate section.
See Iowa Code §§ 713.1, 702.12. By contrast, the Wisconsin
statute does not use a generic term for the locational element;
instead, it enumerates each potential location. This enumeration
means that Wisconsin prosecutors usually charge a specific
subsection for each burglary offense—something that
would be impossible under the Iowa statute. And indeed Wisconsin
courts nearly always report the subsection under
which the defendant was charged or convicted. See, e.g., State
v. Scruggs, 891 N.W.2d 786, 789 (Wis. 2017); State v. Hall,
193 N.W.2d 653, 654 (Wis. 1972); State v. Champlain,
Nos. 16-1580 & 16-1872 9
744 N.W.2d 889, 899 (Wis. App. 2007); but see, e.g., State v.
Lichty, 823 N.W.2d 830, 832 (Wis. App. 2012) (referring to entire
section where appeal involved other issues); State v.
Searcy, 709 N.W.2d 497, 503 (Wis. App. 2005) (same). Wisconsin’s
pattern jury instructions also tell trial judges that the location
(the stand-in term being “building”) “must be modified”
to reflect which place a defendant burglarized. See Wis.
Jury Instructions—Crim. § 1424 & n.2. That form of instruction
treats the location as an element.
Another way of considering the problem is to focus on the
requirement that all jurors agree on elements, but not necessarily
on means. See Richardson v. United States, 526 U.S. 813,
817 (1999); Descamps, 570 U.S. at 286 (Alito, J., dissenting)
(“[I]n determining whether the entry of a building and the entry
of a vessel are elements or means, the critical question is
whether a jury would have to agree on the nature of the place
that a defendant entered.”). We have trouble imagining a case
in which a jury could convict a Wisconsin defendant of burglary
where six jurors were convinced that the defendant burglarized
a retail store (a “building” under subsection (a))
while the other six were convinced that he burglarized a motor
home parked behind the store (under subsection (e)). But
unless a covered location is an element of the crime, as we believe
it is, jurors would not need to agree on the nature of the
burglarized location, at least among the different subsections.
In Edwards we expressed skepticism about Mathis’s third
step of “peeking” at the Shepard documents, at least for Wisconsin
convictions. We explained that under Wisconsin law
the complaint and the information often allege additional
facts that do not need to be proved to the jury. Edwards,
836 F.3d at 837–38. We also said that plea colloquies may not
10 Nos. 16-1580 & 16-1872
be helpful because they may contain unessential factual detail,
included only to help the defendant understand the
charges. Id. at 838. But we did not lay down an inflexible rule
forbidding a court from consulting these documents. We
merely urged caution in individual cases. The documents that
we have reviewed in this case all tell us that the different subparts
were charged and identified specifically in each case,
which is consistent with the other signals we have discussed
that the locations in different subsections are elements of separate
crimes.2
Our conclusion that the subsections of the Wisconsin burglary
statute are elements of different crimes is consistent
with the Eighth Circuit’s recent conclusion that the Wisconsin
burglary statute is a “textbook example” of a statute with different
crimes and elements, not just different means.
United States v. Lamb, 847 F.3d 928, 932 (8th Cir. 2017), petition
for cert. filed, No. 17-5152 (July 12, 2017), quoting
United States v. Jones, No. 04–362, 2016 WL 4186929, at *3
(D. Minn. Aug. 8, 2016). The Eighth Circuit recognized, as we
have, that the Wisconsin precedent and practice of reporting
the subsection under which a defendant is convicted supports
the conclusion that the subsections are distinct elements.
Lamb, 847 F.3d at 932.3
2 The parties have debated at some length the legislative history of
amendments to the burglary statute, see generally Minutes of Wis. Legislative
Council, Criminal Code Advisory Comm., June 5, 1954, at 15–16 &
July 23–24, 1954, at 7, 9, 11, but we find no reliable signals concerning the
issue before us.
3 In Lamb the Eighth Circuit cited a decision from the Supreme Court
of Wisconsin on a sexual-assault statute. That Wisconsin decision deNos.
16-1580 & 16-1872 11
To sum up, we apply Mathis to hold that subsection (a) of
the Wisconsin burglary statute, § 943.10(1m) is divisible from
the other subsections. Because it is divisible, the district court
properly used the modified categorical approach to determine
that Franklin and Sahm’s burglary convictions under
§ 943.10(1m)(a) for burglaries of buildings or dwellings fell
within the definition of generic burglary adopted in Taylor.
Their prior burglary convictions count as violent felonies under
the ACCA. The judgments of the district court are
AFFIRMED.
scribed one subsection of the statute as significantly different from the others,
and the Eighth Circuit saw this description as “strong evidence” that
the Supreme Court of Wisconsin would also consider the burglary subsections
as elements. 847 F.3d at 932, citing State v. Baldwin, 304 N.W.2d 742,
747 (Wis. 1981). The Lamb court cited in a footnote another Supreme Court
of Wisconsin decision finding that a child-enticement statute’s subsections
were part of “one offense with multiple modes of commission.” 847 F.3d
at 932 n.2, quoting State v. Derango, 613 N.W.2d 833, 839 (Wis. 2000). The
Eighth Circuit thought that it had “no rational way” to conclude which of
these competing cases should control the elements v. means question for
the burglary statute. 847 F.3d at 932 n.2. Like the Eighth Circuit, we cannot
predict how the Supreme Court of Wisconsin would reconcile these two
opposing cases concerning unrelated statutes, so we have not considered
them in our analysis.

Outcome: Affirmed

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